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Omar Khadr set to make first public appearance tomorrow during Edmonton court hearing

Former Guantanamo detainee Omar Khadr is expected to make his first public appearance in Canada Monday morning, transferred amid tight security to an Edmonton courthouse where his lawyer will argue he is being held illegally as an adult.

A Pentagon-approved sketch by artist Janet Hamlin shows Omar Khadr during testimony by Dr. Wellner at the U.S. military war crimes commission at the Camp Justice compound on Guantanamo Bay in October, 2010.

EDMONTON—Former Guantanamo detainee Omar Khadr is expected to make his first public appearance in Canada Monday morning, transferred amid tight security to an Edmonton courthouse where his lawyer will argue he is being held illegally as an adult.

Toronto-born Khadr has not been seen since October 2010, when he pleaded guilty before a panel of military jurors in Guantanamo to five war crimes. The Pentagon plea deal gave him an 8-year sentence and chance to return to Canada.

Now 27, Khadr has been in custody for almost half his life. Khadr was 15 when he was shot and captured in Afghanistan following a July 27, 2002 firefight. U.S. Delta Force soldier Sgt. First Class Christopher Speer was fatally wounded in the battle and the Pentagon charged Khadr with “murder in violation of the laws of war,” and four other military commission offences.

Khadr’s historic prosecution marks the only time a U.S. captive has been tried for murder for the death of a service member fighting in Afghanistan or Iraq. He is also the first juvenile convicted for war crimes in modern day history.

Dennis Edney, Khadr’s Edmonton-based lawyer, is arguing Monday that the Canadian government is illegally holding Khadr in a federal penitentiary as an adult, for crimes committed as a youth.

Khadr returned to Canada last September and was incarcerated first at Ontario’s Millhaven Institution, where he spent most of his time in segregation due to death threats. He was transferred to Edmonton this spring and has since been assaulted by an inmate who allegedly accused him of killing a Canadian soldier.

Monday’s hearing is what’s known as an application for habeas corpus and involves somewhat arcane legal arguments about how the Canadian government applied the International Transfer of Offenders Act (ITOA), which is the legislation under which Khadr was able to return to Canada.

The larger question hanging over the proceedings is Khadr’s status as a juvenile. Both criminal and international law makes special provisions for offenders under the age of 18.

In Canada, there are different sentencing guidelines covered under the Youth Criminal Justice Act, including a maximum sentence of 10 years for murder. The U.S.’s Military Commissions Act, under which Khadr was charged, does not make any distinction for youths, however, Guantanamo’s former chief prosecutor said that Khadr’s age was taken into consideration for sentencing.

Edney is arguing since Khadr received an eight-year sentence, he was given a youth sentence and therefore, according to the ITOA, he “may only be held in a provincial correctional facility for adults,” not federal penitentiaries such as Millhaven and Edmonton Institution.

Lawyers with Canada’s Department of Justice concede in their written statement, that an 8-year sentence for murder is indeed a youth sentence. But eight years for the additional charges of attempted murder, spying, conspiracy and providing material support to terrorism could be considered adult sentences.

“Canada law… recognizes that a person cannot serve both youth and adult sentences simultaneously,” the brief submitted on behalf of William Pentney, the deputy attorney of Canada states, arguing that according to Canadian law, the youth sentence is “in effect” converted.

The government also argues that Khadr was over the age of 18 when transferred and given five concurrent sentences for eight years—not one sentence for all the crimes – an assertion Edney opposes.

Khadr was eligible for day parole in January and full parole on July 1, but he has not yet applied. If he were to serve his full sentence he would be eligible for release on Oct. 30, 2018. A parole board is likely to look more favourably upon an inmate incarcerated in a provincial facility, than one in a maximum security federal institute.

While Khadr was raised in Toronto and lived with his family in Pakistan and Afghanistan before his capture, it is in Edmonton where he has received the most community support.

In addition to Edney – who has offered to act as a surety and let Khadr live with his family if granted parole – Khadr is finishing his high school education with the help of a network of university professors.

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